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High Court Madras observation on Certiorarified Mandamus  call for the records of the decision of the respondent GST Council’s Minutes of Meeting.

Case No. : W.P.Nos.16608 & 16613 of 2020

Title : M/s.Parle Agro Pvt. Ltd v. Union of India

Decided on : 31.10.2023.

CORAM : THE HONOURABLE MR.JUSTICE C.SARAVANAN

Introduction

the petitioner has prayed for a Certiorarified Mandamus to call for the records of the decision of the 3 rd respondent GST Council’s Minutes of Meeting taken on 22nd December, 2018 classifying “flavoured milk” under HS Code No. 2202 instead of HS Code 0402 as being contrary to the decision of the Hon’ble Supreme Court in Commissioner versus Amrit Food 2015 (324) ELT 418, Articles 279 A (4), 14, 19(1) (g) and Article 265 of the Constitution of India and to quash the same and to direct the 2 nd respondent to classify “flavoured milk” under HS Code 0402 in terms of decision of the Hon’ble Supreme Court ancillary and collect Goods And Service Tax.

Fact of the Case

The applicant has relied on various decisions from different judicial fora and has claimed that the addition of flavour do not change the characteristics of the product and the product still remains milk and therefore classifiable under CTH 04. And do not disagree with the fact that the product in hand is a form of milk but as brought out supra, the product being a ready for consumption drink, i.e. a beverage with a basis of milk, is specifically classified under CTH 22029930 and excluded from the chapter 04. Further, the decisions in the cases relied upon on the classification, the same is based on the tariff existed before aligning the same with HSN.

Case Analysis and Judgment

The contention of the petitioner for the relief based on the decision of the Hon’ble Supreme Court in Commissioner versus Amrit Food 2015 (324) ELT 418cannot be accepted, nevertheless, the petitioner is entitled to relief. “Flavoured Milk” that was proposed to be manufactured at the time of institution of the Writ Petition merits classification under residuary Sub Heading 0402 99 90 of the Customs Tariff Act. The 3 rd respondent GST Council has given a wrong recommendation. It also cannot determine the classification. Determination of classification also does not fall within the preserve of the 3 rd respondent GST Council.

Having adopted classification of ‘Goods’ and ‘Services’ under the First Schedule to the Customs Tariff Act, 1975, the 3 rd respondent GST Council cannot impose a wrong classification of “Flavoured Milk” as a “Beverage Containing Milk” under the residuary item as “Non-Alcoholic Beverages” under Sub Heading 2202 90 30 of the Customs Tariff Act, 1975.

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Written  by Nimisha Sunny